Author: David Newhoff

David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

Equustek Decision Has Nothing to Do With Speech

Digital World Map

Digital World MapImage by beebright

There. Did you feel that? A tremor in the First Amendment? Somewhere in cyberspace, a website has died, taking with it a tiny Yop of free speech. You can hardly be blamed for missing it against the sound of trillions of other Yops. But it happened and it will happen again. There. It just happened again. Do you feel less free now? Or are you comforted by the arrival of even more Yops to fill the void? Or do you realize that the right of free speech is not quantifiable?

In the slaughter-bench years of Web 1.0, the average website lasted just 44 days. There were about 3,000 active websites in 1994. By 2014, the web had grown by 33-million percent to nearly a billion websites, and there is a ceaseless fluctuation of active vs. inactive sites in any given month. But to hear some of the tech pundits and “digital rights” activists talk, one might get the idea that we are metaphysically 33-million percent more free today than we were 20 years ago—and that this gain must be protected at all costs. That every site is sacred.

When websites die, it’s usually from natural causes like business failure or loss of interest; but every once in a while, sites are ordered shut down or to be de-indexed by state actors because they facilitate some kind of illegal trade. And we’re just going to have to get comfortable with this idea because we now live in a time when a criminal operating in one part of the world can do tremendous harm to an individual or organization—or a whole nation—based thousands of miles away.

To meaningfully address this challenge we must abandon the misplaced idealism that the internet is inherently a benevolent place where civil liberties like free speech thrive on the principles of self-governance. This is a naive premise for any society—civil liberty has always required the rule of law—but apropos my last post about Packingham, this absolutist view of speech is also illusory because it overlooks the fact that corporations like Google and Facebook make decisions to hide, delete, emphasize, or organize speech all the time.

One group of websites that is allegedly doing harm across borders belongs to Datalink, a defendant against plaintiff Equustek in a major Canadian intellectual property litigation. I wrote about this case in detail in 2015, but the synopsis is that Datalink allegedly stole proprietary technology belonging to Equustek and began selling it as their own. When an enterprise is based on theft of trade-secrets (i.e. a counterfeit operation), the web provides easy opportunities to poach potential customers from the rightful supplier by building multiple websites, employing SEO, entering keywords, etc. And that’s exactly what Datalink is doing—redirecting Equustek’s prospective customers to its sites to sell products that allegedly infringe Equustek’s IP in the first place.

Pending trial, Equustek was granted injunctive relief by a Canadian court in the form of an order that Google de-index links to Datalink’s sites, not only for Google Canada but for search results worldwide. Google appealed the order, and last week, the Canadian Supreme Court upheld the lower court’s decision. What is most significant about this ruling is that the order addresses whole sites rather than individual pages, and it applies globally. The Court explained the common-sense rationale for the decision thus:

“Where it is necessary to ensure the injunction’s effectiveness, a court can grant an injunction enjoining conduct anywhere in the world. The problem in this case is occurring online and globally. The Internet has no borders — its natural habitat is global. The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates—globally.”

As usual, Google, the EFF, and others have claimed that this decision would chill speech, still evangelizing the idea that all activity—even illegal activity—must be considered speech when it is conveyed via the web. This dysfunctional, cybernetic theology must be abandoned if we are going to insist that our own technologies serve, rather than destroy, civil society. As the Court replied in this case,“We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods.” If we cannot accept at face value the simple logic that counterfeiting is not speech, then we are rapidly battering the First Amendment into a meaningless doctrine.

The relative ease with which any counterfeiter can hijack online traffic can put consumers at risk as well as legitimate suppliers, so Equustek has tangible implications beyond the high-level legal theories and principles being debated. A while back, I saw a post on the IATSE Facebook feed warning professionals who rig lights and sets about counterfeit shackles on the market. It’s a tiny object that, if it fails, can kill someone; and rational policy has to account for the fact that the internet creates unprecedented opportunities for substandard and counterfeit products to enter the supply chain. Multiply this example across any number of products, from food to firearms, and the potential results are neither theoretical nor have anything to do with free speech.

And as if on cue, NBC reported two days ago that a raid in the Philippines against a hacker organization called Avion turned up further evidence indicating that the owners of Backpage were taking an active role in facilitating the sex trade brokered through its site—including possible links to human trafficking. Readers may remember that the EFF has staunchly defended Backpage’s status as a neutral site protected by Section 230 of the Communications Decency Act, which I will argue is part of the same ideological dysfunction. I would not go so far as to accuse the EFF of defending child pornography and human trafficking; I don’t think they’re bad people in that organization. But I will accuse them of cultural capture—of taking such an absolutist view of these liability shields for service providers that they seem to make no exception for site owners who use the web to commit some very serious crimes.

As stated in a few posts, 2017 seems to be the year when private individuals, corporations, and legal authorities are finally calling bullshit on the internet industry’s exaggerated policy of non-intervention when it comes to mitigating harm. In the meantime, it is both illogical and ahistorical to suggest that the right of speech cannot tolerate a court order, which temporarily enjoins a non-party (Google) from facilitating harm being done to a plaintiff. I mean, did you feel it? Yeah, me either.

See also:  Hugh Stephens Blog & Stephen Carlisle Blog

Malware Suggests Search Plays a Major Role in Piracy

Image by stefanocar75

Copyright holders have long insisted that search results play a substantial role in driving users toward pirate sites.  Google and piracy advocates have generally countered that search does not drive much traffic to illegal sites because the people who consistently use infringing sites know what they’re doing and will go directly to the content they’re seeking.  This is a reasonable assumption to make about the population of committed infringers out there, but one fact that refutes this premise is the extraordinary volume of malware (a 1-in-3 chance) on infringing sites.  Because malware isn’t there to catch the experienced visitor—it’s there to catch the unsuspecting individuals who may not even realize they’re using illegal sites when they first visit.

For those who don’t know how it works, it goes like this:  A user is interested in watching Moonlight.  If he types “Moonlight” into Google Search, the second-tier results will be links that read “Watch Moonlight Online for Free,” all of which are directed to infringing sites.  If the user actually types “Watch Moonlight” into the search field, then the first-tier results will be infringing links. And quite often, Google will automatically suggest words that prompt the user toward an infringing site. For instance, if the user logically adds the word “movie” (because moonlight is a word and not just a title), then Google will complete the thought with “online,” which then yields top results with links to “watch moonlight movie online” via an infringing site.

Google and the piracy apologists are almost certainly correct that many avid visitors to infringing sites are fairly sophisticated users; they have VPNs, ad-blockers, security software, etc. to avoid detection and malware.  But if these were the only kind of visitors landing on these sites, then the underground market in malware-based trade would not be nearly so robust as it is.

As described in this 2015 post about a report called Digital Bait, commissioned by Digital Citizens Alliance and conducted by RiskIQ, a sophisticated “crimeware economy” exists on the Darknet, where criminals buy and sell goods and services used exclusively for preying on users. To use a blunt example, if a teenage girl visits an infringing site, she has up to a 30% chance of contracting malware. That malware may be a Remote Access Trojan (RAT), which gives fairly unsophisticated hackers control of her computer, including her webcam.  Then, her IP address may be sold in this black market to people who want to spy on teenage girls in their bedrooms. In many cases, a user doesn’t even have to consume the infringing content in order to infect a device. The promise of “free content” may be draw the user into a dead-end malware trap.

If all traffic to pirate sites truly comprised only the knowledgeable users, then the criminals would not have a financial incentive to deploy so much malware on sites that infringe, or promise to infringe, copyrighted content.  The very existence of prevalent malware is an indication that a substantial number of users who have no idea what they’re doing are visiting these sites, which logically leads to the conclusion that search must play a significant role in driving users toward these sites and into the hands of criminals.

Notice that, in this context, we don’t even need to address the subject of copyright infringement, let alone get bogged down in all the tedious rhetoric about free speech.  If Google’s top search results are indeed putting users in harm’s way, this is a consumer protection issue for the Fair Trade Administration and/or State Attorneys General.  And, in fact, Digital Citizens Alliance, after releasing its 2016 report Enabling Malware, began presenting its findings to the AGs.

Yes, it is likely true that once a user—even a fairly unsophisticated teenager—is aware of sites where free content is available, he will probably revisit those sites directly without going through a search engine. But even this kind of anecdotal assumption does not mean the role of search is insignificant, not least because the illegal nature of pirate sites means that they have a tendency to disappear and reappear as authorities in various regions shut them down.  A 2013 study indicated that 19% of the traffic to infringing sites could be directly attributable to search, and if that number were wrong by half, it would still represent billions of visits per year.

Consumers have a right to know the nature of their vulnerabilities when using any product or service, and they have a right to demand that U.S. companies take every reasonable step to mitigate exposure to risk.  To date, Google has refused to take even the obvious step of demoting known infringing sites in their search results, let alone to alter the way in which auto-complete may drive consumers toward these sites.

Google does now feature the legal channels for consuming media, including their own services like YouTube and Google Play, which is a good step but not likely sufficient to protect consumers as hackers become more sophisticated and more ambitious.  In fact, one likely consequence of advertisers becoming more effective at keeping their brands off pirate sites is that the criminals will depend more on the “crimeware economy” to make money through infringing content as a means to deliver malware.

Google is getting a lot of pushback lately—from the EU’s anti-trust decision, from the advertisers, and from the Canadian Supreme Court this week in the Equustek case. (More on that shortly.)  I would not be surprised if the State AGs and other consumer-protection agencies begin to take a more active interest in the relationship between search, piracy, and malware.

A Broader View of Packingham SCOTUS Decision

Public protest.

Public protest.Photo by wellphoto

My last post focused narrowly on responding to assertions that the Supreme Court decision in Packingham casts doubt on the constitutionality of DMCA Sec. 512(i).  But as my friend and colleague Mike Katell observes on his blog, the rhetoric employed by Justice Kennedy in that decision underscores a particular challenge we face as social media continues to alter our relationships to politics, civil rights, and even to one another.  In his recent post, Packingham:  The Danger of Confusing Cyberspace with Public Space, Katell writes …

“Packingham is a case about constitutional rights that overlooks the increasing privatization of those rights. It is also part of a larger problem of misrepresenting cyberspace as a zone of freedom. This transformation in our relationships to rights, and our perceptions about those rights, is aided by the invisibility of power online.”

A PhD candidate and researcher at the University of Washington Information School, Katell’s post fairly well sums up the hazards of over-valuing social media platforms as the ultimate turbo-boost to civil liberties, particularly free speech. But among the first matters to address in context to Packingham is to remember that we’re not really talking in general terms about “the internet.”

We Don’t Use “The Internet”

The internet is infrastructure. Most of us don’t really think much about the cables, signals, servers, packets, etc. When we use “the internet,” we really mean platforms that are owned by massive corporations; and increasingly our needs are fulfilled by just a handful of companies.  In Packingham, Kennedy seems to be partly addressing the matter of access to the internet as a whole, particularly in striking down a State law that would too broadly deny that access.  So, in this context, Kennedy’s effusive rhetoric about cyberspace being the “most important place for the exchange of views” is somewhat understandable.  At the same time, when the opinion states, “On Facebook, for example, users can debate religion and politics with their friends and neighbors or share vacation photos,” this more narrow focus on a single platform invokes the context Katell and others are talking about.

Social Media is Not Like a Public Park

The main problem with viewing social media platforms as analogous to public spaces is that this view is apt to overlook the extent to which speech itself on these platforms is manipulated by their owners.  “Through a combination of architecture (code) and policies (terms of service), social media users are guided and constrained in what they can do or say. Twitter, Facebook, and other platforms routinely block users and delete content that would most likely be considered protected speech if it took place in a public venue,” Katell writes.

It is very likely true that some blocking and deleting would be protected speech in real space, though some blocking and deleting would not be. Web platforms do have a habit of defending speech—defamation, copyright infringement, harassment, incitement of violence—that isn’t protected in any context. But to Katell’s point, probably the first dangerous mistake is to ignore the fact that speech on these platforms is controlled—even to the extent that false or tangential stories can gather considerable steam in the minds of the electorate just by virtue of an algorithm repeatedly feeding similar messages. A steady social-media diet of certain messages can make almost any citizen feel rather under siege by a narrative that might not be true or particularly substantive.  We must, therefore, continuously ask to what extent these platforms fuel the present divisive climate rather than ameliorate it with their promises of promoting discourse.

The other danger, however, does arise from the internet industry’s chronic claims to be defenders of speech in numerous cases where harm is actually being done.  We have to ask to what extent this warps Americans’ understanding of the speech right, to say nothing of vesting corporations with the power to “protect” speech on our behalf.  Every time an edge provider cites the First Amendment as grounds for a business decision—usually to not remove some harmful content—and too many users support this view, we are conferring substantial authority to these private companies to secure our civil liberties for us.  Meanwhile, this industry posture feeds a misunderstanding that speech is absolute, which it is not.

The First Amendment prohibits the government from silencing speech. Period.  This means that a) everyone will occasionally be offended; and b) some who are offended will take such extreme action that they will effectively stifle the speech of their fellow citizens. This has always been true, and perhaps Justice Kennedy’s exuberant praise of the web ignores the new ways in which social platforms enable some citizens (or non-citizens) to silence others. We see it happen all the time.  Twitter mobs erupt and dox an individual by sharing home address, and other private information, with the intent to harass and intimidate the individual into silence. And these mobs come in every flavor across the socio-political spectrum.

This dysfunctional rise in mob culture and tribalism is a bigger topic, but the disconnect regarding speech has often occurred when the site owner and its users defend the mob’s responses as protected speech, which is simply not true by any definition.  These privately-owned platforms have every right (and perhaps an obligation) to deny the use of their services to those who would intimidate or harass other users, especially when the speech in question would not be protected outside the realm of cyberspace.  Basically, if a restaurant can throw a customer out for harassing another customer, there is no reason to think that Twitter may not do the same thing without raising a real First Amendment challenge.  But …

Social Media is Not Exactly a Mall Either

“This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium,” states Kennedy’s opinion in Packingham.

While the digital rights crowd will love the second sentence in that statement (and I generally agree with it by the way), the first sentence indicating that this is relatively new territory is the more interesting one.  A social platform is not exactly analogous to a park or a shopping mall;  and public policy has yet to really address constitutional rights in context to these new kinds of spaces—i.e. privately-owned, virtual space that is built for the purpose of public speech.

Parks and malls do no exist for the purpose of speech, although there is a considerable body of local, state, and federal case law, revealing a mosaic of views on allowing or limiting various types of speech at these venues.  For instance, a California Appeals court held that a mall could not limit or control visitors who come with the purpose of proselytizing religious, social, or political views to other visitors.  I am admittedly anti-pester and think a private facility has a right to restrict a certain amount of pestering on behalf of its customers; but it seems as though the mall’s restrictions, in this case, were viewed as too broad in context to the California State Constitution.

As policy takes shape in relation to cyber-venues, legislators and the courts will look to statutes and decisions associated with physical spaces, but at some point, those analogies must break down, and we enter new territory.  It has been a general bias—and certainly the desire of Silicon Valley—that government keep its mitts off “the internet.”  But if indeed access to a privately-owned platform like Facebook is held to be a civil right because of the First Amendment, then some form of social-media regulation may be the result of that conclusion.  Won’t that get interesting?